1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.129 OF 2015

Yakub Abdul Razak Memon Petitioner(s)

Versus

State of Maharashtra, Thr. the Respondent(s)Secretary, Home Department and Others

J U D G M E N T

Dipak Misra, J.

Invoking the jurisdiction of this Court under Article 32

of the Constitution of India, the petitioner, who has been

sentenced to death, has prayed for issue of a mandamus or

appropriate writ or direction for setting aside the order dated

30th April, 2015, passed by the Presiding Officer, Designated

Court under TADA (P) Act, 1987, for Bombay Blast Cases and

the order bearing No.S-0113/C.R.652/13/PRS-3 dated 13th

2

July, 2015, passed by the Government of Maharashtra, Home

Department and the communication bearing O.W.

No.ASJ/DEATH SENTENCE/222/2015 dated 13th July, 2015,

issued by the Superintendent, Nagpur Central Prison, Nagpur,

in terms whereof the death sentence awarded to the petitioner

has been directed to be executed on 30th July, 2015, at 7.00

a.m.; issue a writ of prohibition prohibiting the respondents

and each one of them along with their

subordinates/agents/assigns from taking steps in pursuance of

the orders dated 30th April, 2015 and 13th July, 2015, and,

further to stay the execution of the death sentence awarded to

him in terms of the judgment dated 25th October, 2007 of the

Designated TADA Court, Bombay in BBC No.1/1993, which has

been confirmed by this Court vide judgment dated 21st March,

2013 in Criminal Appeal No.1728 of 2007, till the petitioner has

exhausted all the legal remedies available to him, to have the

sentence of death awarded commuted to that of life

imprisonment including the remedies under Articles 72 and

161 of the Constitution of India.

2. Before we advert to the factual assertions made in the

writ petition by the petitioner and the stand and stance put

3

forth by the respondents, we are obliged to refer to certain

developments that took place in the judicial proceedings before

this Court. In course of hearing of the writ petition, the matter

was listed before a two-Judge Bench. It was heard for some

days. After hearing, Anil R. Dave, J. passed the following order:

“Heard the learned senior counsel appearingfor both the sides at length.

It is a fact that the conviction of thepetitioner has been confirmed by this Courtand the Review Petition as well as the CurativePetition filed by the petitioner have also beendismissed by this Court. Moreover, HisExcellency Hon'ble The President of India andHis Excellency The Governor of Maharashtrahave also rejected applications for pardonmade by the petitioner, possibly because of thegravity of the offence committed by thepetitioner.

It has been submitted by the learnedcounsel appearing for the petitioner that onemore application made to His Excellency TheGovernor of Maharashtra is still pending.

If it is so, it would be open to His ExcellencyThe Governor of Maharashtra to dispose of thesaid application before the date on which thesentence is to be executed, if His Excellencywants to favour the petitioner. Submissionsmade about the Curative Petition do not appealto me as they are irrelevant and there is nosubstance in them.

In these circumstances, the Writ Petitionis dismissed.”

4

3. Kurian Joseph, J., disagreed with Anil R. Dave, J.

The basis of disagreement as is evincible from his judgment is

that the curative petition that was decided by a Bench of three

senior-most Judges of this Court on 21st July, 2015, was not

appositely constituted as required under Rule 4 of Order XLVIII

of the Supreme Court Rules, 2013 (for short, 'the Rules'). After

referring to Rule 4(1) and (2) of the said Rules and the term

'judgment' as defined in Order I Rule 2(k) of the Rules, the

learned Judge has held thus:

“It may not also be totally out of context to notethat the order dated 09.04.2015 in the ReviewPetition is captioned as a Judgment,apparently, in terms of the definition of'judgment' under the Supreme Court Rules.Thus, it is found that the procedure prescribedunder the law has been violated while dealingwith the Curative Petition and that too, dealingwith life of a person. There is an error apparenton the face of the order in the CurativePetition. The mandatory procedure prescribedunder law has not been followed.

Though the learned senior counsel andthe learned Attorney General referred tovarious grounds available in a CurativePetition, in the nature of the view I have takenin the matter that the Curative Petition itselfhas not been decided in accordance with theRules prescribed by this Court, that defectneeds to be cured first. Otherwise, there is a

5

clear violation of Article 21 of the Constitutionof India in the instant case.

The learned Attorney General, interalia , contended that this is not an issue raisedin the writ proceedings. I do not think thatsuch a technicality should stand in the way ofjustice being done. When this Court as theprotector of the life of the persons under theConstitution has come to take note of asituation where a procedure established by lawhas not been followed while depriving the life ofa person, no technicality shall stand in the wayof justice being done. After all, law is for manand law is never helpless and the Courtparticularly the repository of such highconstitutional powers like Supreme Court shallnot be rendered powerless.

In the above circumstances, I find thatthe order dated 21.07.2015 passed in theCurative Petition is not as per the procedureprescribed under the Rules. Hence, theCurative Petition has to be considered afresh interms of the mandatory requirement underRule 4 of Order XLVIII of the Supreme CourtRules, 2013.

In that view of the matter, the deathwarrant issued pursuant to the Judgment ofthe TADA Court dated 12.09.2006, asconfirmed by this Court by its Judgment dated21.03.2013, of which the Review Petition hasbeen dismissed on 09.04.2015, is stayed till adecision afresh in accordance with law is takenin the Curative Petition.

After a decision is taken on the matter,as abovesaid, the Writ Petition be placed forconsideration before the Court.”

6

On the basis of difference of opinion between the two

learned Judges, the matter has been placed before us.

4. As is evident, Dave, J. has dismissed the writ petition,

but has not adverted to the submissions made as regards the

curative petition and only opined that they were irrelevant and

there was no substance in them. Kurian Joseph, J. as is

patent from his order has addressed at length to the same and

kept the writ petition alive.

5. First, we shall address the question whether the

curative petition was listed before a Bench in violation of the

Rules. Be it clarified here, we restrain and refrain ourselves

from addressing whether such an order could at all be

challenged under Article 32 of the Constitution of India. As it

seems, such a plea was not taken in the petition preferred by

the petitioner. However, the learned Judge thought it

appropriate to advert to the same and dwelt upon that and,

therefore, the reference has arisen. Hence, the necessity to

answer the same.

6. The creation of curative jurisdiction by this Court is

based on the Constitution Bench judgment in Rupa Ashok

7

Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said

judgment, the decisions in certain matters used to be

challenged under Article 32 of the Constitution. The majority

speaking through Quadri, J., opined that Article 32 petition

could not be entertained as the same was not maintainable. Be

it stated, the said statement of law was conceded to by the

learned counsel who appeared for the parties. However, it was

also conceded that some principle has to be evolved in that

regard. On that basis the curative principle was evolved. While

evolving the said principle, the majority noted as follows:

“48. In the cases discussed above this Courtreconsidered its earlier judgments, inter alia,under Articles 129 and 142 which confer verywide powers on this Court to do completejustice between the parties. We have alreadyindicated above the scope of the power of thisCourt under Article 129 as a court of recordand also adverted to the extent of power underArticle 142 of the Constitution.

49. The upshot of the discussion in our viewis that this Court, to prevent abuse of itsprocess and to cure a gross miscarriage ofjustice, may reconsider its judgments inexercise of its inherent power.

50. The next step is to specify the requirementsto entertain such a curative petition under theinherent power of this Court so that floodgatesare not opened for filing a second reviewpetition as a matter of course in the guise of a

8

curative petition under inherent power. It iscommon ground that except when very strongreasons exist, the Court should not entertainan application seeking reconsideration of anorder of this Court which has become final ondismissal of a review petition. It is neitheradvisable nor possible to enumerate all thegrounds on which such a petition may beentertained.

51. Nevertheless, we think that a petitioneris entitled to relief ex debito justitiae if heestablishes (1) violation of principles of naturaljustice in that he was not a party to the lis butthe judgement adversely affected his interestsor, if he was a party to the lis, he was notserved with notice of the proceedings and thematter proceeded as if he had notice and (2)where in the proceedings a learned Judgefailed to disclose his connection with thesubject-matter or the parties giving scope foran apprehension of bias and the judgmentadversely affects the petitioner.”

7. We have referred to the aforesaid paragraphs to

indicate that though the majority has stated that it is neither

advisable nor possible to enumerate all the grounds on which

such a petition may be entertained, yet the Bench laid down the

ex debito justitiae principle and further enumerated two

grounds.

8. Learned senior counsel appearing for the petitioner

have submitted that apart from those grounds, other grounds

9

can also be taken. We do not intend to dwell upon the same as

we are only required to deal with the reference in a limited

manner, that is, whether the curative petition had been decided

by the Bench duly constituted as per the Rules. In this regard,

it is necessary to understand what has been stated in Rupa

Ashok Hurra case. Paragraph 52 of the said decision reads as

follows:

“The petitioner, in the curative petition, shallaver specifically that the grounds mentionedtherein had been taken in the review petitionand that it was dismissed by circulation. Thecurative petition shall contain a certification bya Senior Advocate with regard to the fulfilmentof the above requirements.”

9. Paragraph 52 clearly lays down that the curative

petition shall aver specifically that the ground mentioned

therein had been taken in the review petition and that it was

dismissed by circulation. The curative petition shall contain a

certification by a senior advocate with regard to the fulfillment

of the above requirements. The constitution of the Bench has

been laid down in paragraph 53. The relevant part of the said

paragraph is as follows:

“We are of the view that since the matterrelates to re-examination of a final judgment ofthis Court, though on limited ground, the

10

curative petition has to be first circulated to aBench of the three senior-most Judges and theJudges who passed the judgment complainedof, if available. It is only when a majority of thelearned Judges on this Bench conclude thatthe matter needs hearing that it should belisted before the same Bench (as far aspossible) which may pass appropriate orders.”

10. Regard being had to what has been stated by the

Constitution Bench, the Rule position of Order XLVIII which

deals with the curative petition has to be appreciated. For the

sake of appropriate appreciation, the entire Rule is reproduced

below:

“1. Curative Petitions shall be governed byJudgment of the Court dated 10th April, 2002delivered in the case of Rupa Ashok Hurrah v.Ashok Hurrah and Ors. in Writ Petition (C)No.509 of 1997.

2.(1) The petitioner, in the curative petition,shall aver specifically that the groundsmentioned therein had been taken in theReview Petition and that it was dismissed bycirculation.

(2) A Curative Petition shall be accompaniedby a certificate of the Senior Advocate that thepetition meets the requirements delineated inthe above case.

(3) A curative petition shall be accompaniedby a certificate of the Advocate on Record to theeffect that it is the first curative petition in theimpugned matter.

11

3. The Curative Petition shall be filed withinreasonable time from the date of Judgment orOrder passed in the Review Petition.

4.(1) The curative petition shall be firstcirculated to a Bench of the three senior-mostjudges and the judges who passed thejudgment complained of, if available.

(2) Unless otherwise ordered by the Court, acurative petition shall be disposed of bycirculation, without any oral arguments butthe petitioner may supplement his petition byadditional written arguments.

(3) If the bench before which a curativepetition was circulated concludes by a majoritythat the matter needs bearing then it shall belisted before the same Bench, as far aspossible.

(4) If the Court, at any stage, comes to theconclusion that the petition is without anymerit and vexatious, it may impose exemplarycosts on the petitioner.”

11. It is submitted by Mr. Raju Ramachandran, learned

senior counsel appearing for the petitioner that the view

expressed by Kurian, J. is absolutely in consonance with the

Rule, inasmuch as the learned Judges who decided the review

petition were not parties to the Bench that decided the curative

petition. He has given immense emphasis on Rule 4(1) and the

dictionary clause in Rule 2(1)(k), which defines the term

“judgment”. The same reads as follows:

12

“2.(1) In these rules, unless the contextotherwise requires -

(k) 'judgment' includes decree, order,sentence or determination of any Court,Tribunal, Judge or Judicial Officer.”

12. The question, in essence, would be whether the term

'order' which forms a part of the definition of ‘judgment’ as

stipulated under Order I Rule 2(1)(k) would mean that the order

in review or the judgment passed in the main judgment. On a

studied scrutiny of paragraph 53 of Rupa Ashok Hurra (supra)

and the preceding paragraph which we have reproduced

herein-above, the curative petition has to be circulated to a

Bench of three senior-most Judges, and the Judges who had

passed the judgment complained of. Needless to say, the

availability has been mentioned therein. The rule has been

framed in accord with the principle laid down by the

Constitution Bench.

13. We are required to understand what is meant by the

words “judgment complained of”. According to Rupa Ashok

Hurra (supra) principle, a second review is not permissible.

However, a curative petition is evolved in exercise of power

under Article 142 of the Constitution of India to avoid

13

miscarriage of justice and to see that in the highest Court,

there is no violation of principle of natural justice, and bias

does not creep in which is also fundamentally a facet of natural

justice in a different way. We reiterate at the cost of repetition,

whether other grounds can be taken or not, need not be

adverted to by us. The principle of review as is known is to

re-look or re-examine the principal judgment. It is not a virgin

ground as has been held by Krishna Iyer, J. in Sow Chandra

Kante and Another vs. Sheikh Habib (1975) 1 SCC 674. The said

principle has been reiterated in many an authority. Thus, it is

luculent that while this Court exercises the jurisdiction in

respect of a curative petition, it is actually the principal

judgment/main judgment, which is under assail.

14. The said judgment is the main judgment and in

actuality attaches finality to the conviction in a case and the

matter of re-examination is different. The curative petition is

filed against the main judgment which is really complained of.

The words “complained of” has to be understood in the context

in which the Constitution Bench has used. The majority of the

Constitution Bench, as we understand, was absolutely of the

firm opinion that a review of a review would not lie and an

14

Article 32 petition would not be maintainable and, therefore,

such a method was innovated.

15. Mr. Raju Ramachandran, learned senior counsel

would submit that the learned senior counsel who appeared for

the various petitioners in the said case always thought of an

amalgam. Per contra, Mr. Mukul Rohatgi, learned Attorney

General would submit that there may be an amalgam, but the

three senior-most Judges have been categorically stated to be

parties to the Bench and the Judges of the “judgment

complained of” are to be parties and if they are not available, it

is the prerogative of the Chief Justice of India to include some

other Judges; however, if it is dealt with by three senior-most

Judges, as in this case by the Chief Justice of India and two

senior-most Judges, the order would not become void. In our

considered opinion, the submissions canvassed by the Mr.

Mukul Rohatgi, learned Attorney General, deserves acceptation

and, accordingly, we hold that the curative petition that was

decided by three senior-most Judges of this Court, can neither

be regarded as void or nullity nor can it be said that there has

been any impropriety in the constitution of the Bench. The

Judges, who delivered the main judgment admittedly were not

15

available in office. If as a principle it is laid down that the

Judges who decide the review in the absence of the judges who

have demitted the office, are to be made parties by a judicial

imperative, that would not be appropriate. We are absolutely

conscious that a judgment is not to be read as a statute, but

definitely a judgment has to be understood in proper

perspective. We emphasize on the judgment as the rules have

been framed in consonance with the judgment and not in

deviation thereof. Thus, we disagree with the view expressed by

Kurian Joseph, J. in this regard. Mr. Raju Ramachandran,

learned senior counsel, would emphasise on the word

'judgment' as the dismissal of the review petition has been

captioned as 'judgment'. The nomenclature, in our considered

opinion, is not relevant. For the sake of example, we may say,

an order in certain cases can assume the status of a decree and

in certain cases a decree may not be a decree as per Section 2

of the Code of Civil Procedure. The purpose of saying so is that

solely because the dismissal of the review petition has been

nomenclatured as 'judgment', it will not come within the ambit

and sweep of the concept of 'judgment complained of'.

16

16. At this juncture, it is condign to state that Kurian, J.,

as is vivid from his decision has not dealt with the petition

under Article 32 of the Constitution, but directed that the

curative petition has to be considered afresh in terms of the

mandatory rules. We have already recorded our disagreement

with the same. Therefore, the next stage has to be delineation

of the writ petition on merits. As a sequitur, the dismissal of

the curative petition by the three senior-most Judges of this

Court has to be treated as correct and not vitiated by any kind

of procedural irregularity.

17. Coming to the main petition, we have already stated

about the prayers made therein. To appreciate the prayers, we

have to refer to certain facts as they are absolutely necessitous.

The petitioner was tried for various offences before the TADA

Court which imposed the death penalty on him. In appeal, a

two-Judge Bench of this Court adverted to the charges, various

submissions and eventually concurred with the view expressed

by the TADA Court.

18. After the judgment was pronounced on 21st March,

17

2013, an application for review was filed, which was dismissed

by circulation on 30th July, 2013. After the rejection of the

application for review, Suleman, the brother of the petitioner,

represented under Article 72 of the Constitution to the

President of India on 6th August, 2013, claiming benefits under

Article 72(1) of the Constitution. The petitioner on 7th August,

2013, wrote to the Superintendent, Central Jail, Nagpur,

informing him about receipt of petition by the office of the

President of India. On 2nd September, 2013, the Government of

India forwarded the mercy petition of the convict addressed to

the President of India, to the Principal Secretary, Home

Department, Maharashtra, as per the procedure. The Governor

of Maharashtra rejected representation on 14th November, 2013

and on 30th September, 2013, the State Government informed

the Central Government about rejection of mercy petition by the

Governor of Maharashtra. On receipt of the said

communication from the State Government on 10th March,

2014, the summary of the case/mercy petition prepared by the

Ministry of Home Affairs under the signatures of Home Minister

was forwarded to the President of India. On 11th April, 2014,

the President of India, rejected the mercy petition of the

18

petitioner. The said rejection was communicated to the State

Government on 17/21.04.2014, with the stipulation that the

convict be informed and, accordingly, on 26th May, 2014, the

petitioner was informed about the rejection of mercy petition by

the President of India.

19. While the aforesaid development took place, the

petitioner along with other accused in Mohd. Arif alias Ashfaq

vs. Registrar, Supreme Court of India and Others (2014) 9 SCC

737, had assailed the constitutional validity of Order XL Rule 3

of the Supreme Court Rules, 1966, as unconstitutional. The

main ground urged was that hearing of the review petition

should not be by circulation, but should be only in open Court

and hearing of cases in which death sentence has been

awarded should be by a Bench of at least three, if not five,

Supreme Court Judges. The Constitution Bench after hearing

the learned counsel for the parties opined that there should be

a limited oral hearing even at the review stage in all death

sentence cases. We think it appropriate to reproduce

paragraphs 39 and 40, as Mr. Mukul Rohatgi, learned Attorney

General has emphasized on an aspect which we shall advert to

slightly later on. The said paragraphs read as follows:

19

“39. Henceforth, in all cases in which deathsentence has been awarded by the High Courtin appeals pending before the Supreme Court,only a bench of three Hon’ble Judges will hearthe same. This is for the reason that at leastthree judicially trained minds need to applytheir minds at the final stage of the journey ofa convict on death row, given the vagaries ofthe sentencing procedure outlined above. Atpresent, we are not persuaded to have aminimum of 5 learned Judges hear all deathsentence cases. Further, we agree with thesubmission of Shri Luthra that a review isordinarily to be heard only by the same benchwhich originally heard the criminal appeal.This is obviously for the reason that in orderthat a review succeeds, errors apparent on therecord have to be found. It is axiomatic thatthe same learned Judges alleged to havecommitted the error be called upon now torectify such error. We, therefore, turn downShri Venugopal’s plea that two additionalJudges be added at the review stage in deathsentence cases.

40. We do not think it necessary to advert toShri Jaspal Singh’s arguments since we areaccepting that a limited oral review be grantedin all death sentence cases including TADAcases. We accept what is pointed out by thelearned counsel for the petitioner in WritPetition No.39/2013 and provide for an outerlimit of 30 minutes in all such cases. When wecome to P. N. Eswara Iyer’s case which washeavily relied upon by the learned SolicitorGeneral, we find that the reason for upholdingthe newly introduced Order XL Rule 3 in theSupreme Court Rules is basically because ofsevere stress of the Supreme Court workload.We may add that that stress has beenmultiplied several fold since the year 1980.

20

Despite that, as we have held above, we feelthat the fundamental right to life and theirreversibility of a death sentence mandate thatoral hearing be given at the review stage indeath sentence cases, as a just, fair andreasonable procedure under Article 21mandates such hearing, and cannot give wayto the severe stress of the workload of theSupreme Court. Interestingly, in P.N. EswaraIyer’s case itself, two interesting observationsare to be found. In para 19, Krishna Iyer, J.says that “…presentation can be written ororal, depending upon the justice of thesituation.” And again in para 25, the learnedJudge said that “…the problem really is to findout which class of cases may, without risk ofinjustice, be disposed of without oralpresentation.”

20. It is apt to note here that certain class of cases were

covered to be heard for limited oral hearing. The same are

postulated in paragraph 46, which reads as follows:

“46. We make it clear that the law laid downin this judgment, viz., the right of a limited oralhearing in review petitions where deathsentence is given, shall be applicable only inpending review petitions and such petitionsfiled in future. It will also apply where a reviewpetition is already dismissed but the deathsentence is not executed so far. In such cases,the petitioners can apply for the reopening oftheir review petition within one month from thedate of this judgment. However, in those caseswhere even a curative petition is dismissed, itwould not be proper to reopen such matters.”

21

21. In those type of cases also, 30 minutes oral hearing

was to be given. It is submitted by Mr. Rohtagi, learned

Attorney General, that as per the admission made by the

petitioner, a review petition was filed in pursuance of the

decision in Mohd. Arif alias Ashfaq (supra) and it was heard for

almost 10 days. It will be seemly to reproduce the order passed

in the Review Petition as under :

“We have heard the learned senior counselappearing for the review petitioner and thelearned senior counsel length. appearing forthe respondent, at We have gone through thejudgment sought to be reviewed and we haveconsidered the arguments advanced on bothsides. As requested, we have also gonethrough the judgment of the trial court, inorder to appreciate the contention onconviction and sentence. advancedconsidered by in We the find that reviewdetail sought to be reviewed. in all thepetitioner the judgment arguments havebeen which is Hence, we do not find anyerror apparent on the face of record or anyother ground so as to warrant interference inexercise of our review jurisdiction.

The review petition is hence dismissed. ”

22. The review petition was dismissed on 09.04.2015. It is

submitted by Mr. Rohtagi that it is a second review petition. In

oppugnation, Mr. Raju Ramachandran would submit that this

22

was really reopening of the review petition as per the judgment

in Arif and, therefore, it cannot be called a second review

petition. Be that as it may, after the rejection of the review

petition by the learned Judges on 09.04.2015, the petitioner

filed a curative petition on 22.05.2015 which was dismissed

vide order dated 21.07.2015.

23. At this juncture, we are required to sit in a time

machine to appreciate certain other facts. After the review

petition by the Judges who had decided the appeal was

dismissed, a death warrant was issued on 14.08.2013 and the

mercy petition was rejected on 11.04.2014. After rejection of

the review petition by the three Judges by giving him open

hearing on 21.04.2015, the petitioner was communicated to file

a curative petition and, as is manifest, he had filed a curative

petition. The grievance of the petitioner, as canvassed by Mr.

Raju Ramachandran, which has been echoed with quite

vehemence by Mr. Andhyarujina and Mr. Grover, learned senior

counsel, who have intervened in the matter on behalf of certain

institutions is that there has been a procedural violation

inasmuch as the TADA Court on 30.04.2015 had issued death

warrant directing execution on 30.07.2015 while the curative

23

petition was yet to be filed. Submission of the learned senior

counsel for the petitioner as well as Mr. Andhyarujina and Mr.

Grover is that though the TADA Court granted 90 days, yet the

petitioner was served only on 13.07.2015 which suffers from

incurable procedural illegality and warrants quashment of the

death warrant. They have placed heavy reliance on Shatrughan

Chauhan & Anr. vs. Union of India & Ors. [(2014) 3 SCC 1] and

Shabnam vs. Union of India & Ors. [2015 (7) SCALE 1].

Paragraph 241.7 of Shatrughan Chauhan is the gravamen of

submission of Mr. Raju Ramachandran, learned senior counsel

appearing for the petitioner. The said paragraph reads as

follows:

“241.7. Some prison manuals do not providefor any minimum period between the rejectionof the mercy petition being communicated tothe prisoner and his family and the scheduleddate of execution. Some prison manuals havea minimum period of 1 day, others have aminimum period of 14 days. It is necessarythat a minimum period of 14 days bestipulated between the receipt ofcommunication of the rejection of the mercypetition and the scheduled date of executionfor the following reasons:-

(a) It allows the prisoner to prepare himselfmentally for execution, to make his peace withgod, prepare his will and settle other earthlyaffairs.

24

(b) It allows the prisoner to have a last andfinal meeting with his family members. It alsoallows the prisoners’ family members to makearrangements to travel to the prison whichmay be located at a distant place and meet theprisoner for the last time. Without sufficientnotice of the scheduled date of execution, theprisoners’ right to avail of judicial remedieswill be thwarted and they will be preventedfrom having a last and final meeting with theirfamilies. ”

29. It is urged by Mr. Raju Ramachandran, learned senior

counsel, that there has been non-compliance with the same

inasmuch as though the TADA Court has given 90 days’ time to

the petitioner, yet the same has been curtailed by the State

authorities for unfathomable reason. Per contra, Mr. Rohtagi,

learned Attorney General would submit that the rejection of

mercy petition was communicated on 26.05.2014. Therefore,

the mandate in the said paragraph would not vitiate the

warrant.

25. At this stage, we are under obligation to note that the

fulcrum of submission of Mr. Raju Ramachandran, learned

senior counsel, which has also received support from Mr.

Andhyarujina and Mr. Grover, learned senior counsel is that

after rejection of the curative petition, the petitioner has

25

submitted a second mercy petition to the Governor of

Maharashtra on 22.07.2015 and until that is decided, the

warrant cannot be executed. We shall advert to the same at a

later stage. As far as the compliance of period of 14 days from

the scheduled date of execution is concerned, it meets the time

limit.

26. The next aspect that has been highlighted by the

learned senior counsel for the petitioner is that on the date the

death warrant was issued, the TADA Court did not hear him, as

a result of which the fundamental right enshrined under Article

21 of the Constitution has been violated. To bolster the said

submission, he has commended us to paragraph 11 of the

decision in Shabnam (supra). The said paragraph is extracted

below :

“11) On the other hand, in so far as thepresent case is concerned, the stage of petitionfor mercy has not yet come inasmuch as theconvicts have right to file an application forreview in this Court seeking review of theJudgment dated 15.05.2015, vide which, theappeals of both the convicts were dismissed.He has also drawn our attention to theJudgment of the Division Bench of theAllahabad High Court in a matter titled asPeoples' Union for Democratic Rights (PUDR)v. Union of India & Ors. (PIL No.57810 of 2014

26

decided on 28.01.2015). He has submittedthat in the said case, the High Court hasmandated the following procedure which hasto be followed before the execution of thedeath sentence. The said portion from thejudgment is extracted below:

“We are affirmatively of the view that in acivilized society, the execution of thesentence of death cannot be carried out insuch an arbitrary manner, keeping theprisoner in the dark and without allowinghim recourse and information. Essentialsafeguards must be observed. Firstly, theprinciples of natural justice must be read intothe provisions of Sections 413 and 414 ofCr.P.C. and sufficient notice ought to begiven to the convict before the issuance of awarrant of death by the sessions court thatwould enable the convict to consult hisadvocates and to be represented in theproceedings. Secondly, the warrant mustspecify the exact date and time for executionand not a range of dates which places aprisoner in a state of uncertainty. Thirdly, areasonable period of time must elapsebetween the date of the order on theexecution warrant and the date fixed orappointed in the warrant for the execution sothat the convict will have a reasonableopportunity to pursue legal recourse againstthe warrant and to have a final meeting withthe members of his family before the datefixed for execution. Fourthly, a copy of theexecution warrant must be immediatelysupplied to the convict. Fifthly, in thosecases, where a convict is not in a position tooffer a legal assistance, legal aid must beprovided. These are essential proceduralsafeguards which must be observed if theright to life under Article 21 is not to bedenuded of its meaning and content.”

27

27. It is submitted by Mr. Raju Ramachandran, learned

senior counsel, that this Court has given the stamp of approval

to what has been stated by the Division Bench of the High

Court of Allahabad and, therefore, it is a declaration of law

under Article 141 of the Constitution. It is urged by him that

the principles of natural justice are to be read into the

provisions of Chapter 413 and 414. The convict has to be

heard at the time of issuance of warrant. The learned Attorney

General, in his turn, would contend that the said judgment was

pronounced on 27.05.2015 whereas the warrant in this case

was issued on 30.04.2015 and that is why the learned TADA

Court could not have applied the same principle. In essence,

the submission of Mr. Rohtagi is that the principles laid down

in the said judgment have to apply prospectively. In our

considered opinion, the postulates made in the said judgment

can be best understood from paragraphs 20 and 21 of the said

judgment. They read as follows :

“20) Thus, we hold that condemned prisonersalso have a right to dignity and execution ofdeath sentence cannot be carried out in aarbitrary, hurried and secret manner withoutallowing the convicts to exhaust all legal

28

remedies.

21) We find that the procedure prescribed bythe High Court of Allahabad in PUDR's case(supra) is in consonance with Article 21 of theConstitution. While executing the deathsentence, it is mandatory to follow the saidprocedure and it is also necessary for theauthorities to keep in mind the guidelinescontained in the judgment of this Court inShatrughan Chauhan's case (supra). ”

28. Thus viewed, it would become a declaration of law

under Article 141 of the Constitution and unless the Court says

it is prospectively applicable, it would always be deemed to be

applicable. However, it is also to be seen what is the purpose

and purport behind the said principle and whether that would

affect the issuance of death warrant in this case. The Court

has held that sufficient notice is to be given to the convict

before issuance of death warrant by the Sessions Court so that

it would enable him to consult his advocates and to be

represented in the proceedings. That being the purpose, it has

to be viewed in the present exposition of facts. In this case,

after the warrant was issued, though it has been served on the

petitioner on 13.07.2015, yet he had filed the curative petition

on 22.05.2015 and, therefore, he cannot take the plea that he

had not availed the legal remedies. The curative petition, as

29

has been mentioned earlier, has been dismissed on 21.07.2015.

In our view, the purpose behind the said mandate has been

complied with in this case. We may explain slightly elaborately.

In Shatrughan Chauhan's case, after the appeal was dismissed,

warrant was issued six days later. Indubitably, that was not in

accord with any principle in such a case. Needless to say, the

same principles would be applicable but in the case at hand,

the said principles cannot be stretched to state that the

issuance of warrant by the TADA Court would be void on the

basis of non-compliance of one of the facets of the procedure.

We are inclined to hold so as the petitioner had availed series of

opportunities to assail the conviction and as accepted he was

offered ten days when the review petition was heard.

29. We had already stated that we would be dealing with

the facet of second mercy petition which has been submitted on

22.07.2015. It is urged by Mr. Raju Ramachandran, learned

senior counsel for the petitioner, and Mr. Andhyarujina and Mr.

Grover supporting him that the submission of delineation of

mercy petition is a constitutional right as per Articles 72 and

161 of the Constitution of India. To buttress the said

submission, they refer to few passages from Chauhan's case. In

30

the said case, it has been stated that it is a constitutional right.

A convict, after his conviction, at any stage, can make a

representation to the constitutional authority seeking pardon or

remission or other reliefs as have been provided under the said

Articles. In the instant case, the brother of the petitioner had

submitted the mercy petition to the President of India. The

petitioner was absolutely in know of the same. He was

communicated by the competent authority that the President of

India has rejected the same on 11.04.2014. A contention has

been raised that it was the brother who had submitted the

mercy petition and not the petitioner. The said fact is accepted

and is also evident from the communication dated 07.08.2013

to the Superintendent, Central Jail, Nagpur. There cannot be

any cavil that another mercy petition can be filed in certain

situations. It is put forth by Mr. Raju Ramachandran that the

petitioner has taken additional grounds which include suffering

from schizophrenia. It is urged they are to be considered under

the Constitution by the President of India. Mr. Rohtagi, learned

Attorney General, has disputed the same.

30. We are obligated to state that dealing with the mercy

petition is by the Executive. True it is, on certain limited

31

grounds, as per Shatrughan Chauhan (supra), it can be

challenged. We need not delve into that realm. After the first

mercy petition was rejected, the petitioner did not challenge

that. He has submitted the mercy petition, as per his version,

on 22.07.2015. How that mercy petition is going to be dealt

with, we are not inclined to dwell upon the same. We only hold

that issuance of death warrant is in order and we do not find

any kind of infirmity in the same.

31. In view of the aforesaid analysis, we conclude that the

curative petition which is decided by three senior most Judges

of this Court cannot be flawed and the issue of death warrant

by the TADA Court on 30.04 2015 cannot be found fault with.

In the result, the writ petition, being sans merit, stands

dismissed.

............................J.[Dipak Misra]

............................J.[Prafulla C. Pant]

............................J.[Amitava Roy]

New DelhiJuly 29, 2015